31 January 2023

Adapt or Die?

The Council of Europe seeks new ideas to address ‘seismic change’

The year 2022 will be remembered as one of ‘terrible violence and seismic change in Europe’, in the words of the High Level Reflection Group (HLRG) established by the Council of Europe to consider the organisation’s future and how best to protect its ‘common heritage’ of respect for human rights, democracy and the rule of law. Will 2023 be the year that the Council of Europe reinvents itself to meet the challenges posed not only by Russia’s barbarous invasion of Ukraine but also systemic threats such as creeping authoritarianism and the climate emergency?

This is the organisation’s ambition in calling a summit of heads of state and government on 16-17 May in Reykjavik. Unlike previous reform initiatives, the agenda for the summit focuses not on the European Court of Human Rights alone, but on the entire Council of Europe, and conveys a level of urgency and openness to change not seen for the past 25 years.

The Council of Europe has issued a public call for ideas, inviting input from international organisations, national human rights institutions, civil society organisations, academics, human rights defenders and others. Below, we outline how the Council of Europe reached this point and the likely agenda for the summit. The deadline for submissions is imminent – 20 February – and the need for radical thinking has never been greater.

Historic milestones

Summits of heads of state and government are rare: in the Council of Europe’s 70-year history, only three have been held before – in Vienna in 1993, Strasbourg in 1997 and Warsaw in 2005, as the organisation responded to the fall of the Berlin Wall and the dramatic eastwards expansion of its membership. Other milestones in this reform process were Protocol 11, which established the full-time European Court of Human Rights in 1998, and Protocol 14, which from 2010 brought major changes to the Court’s management of its (by then, mountainous) caseload.

The baton then passed to Interlaken, where a high-level conference in 2010 began a reform process spanning almost a decade, punctuated by further conferences in Izmir (2011), Brighton (2012), Brussels (2015), and Copenhagen (2018). The Interlaken process focused principally on reform of the Court and was preoccupied throughout by the caseload crisis (which in 2011 peaked at more than 150,000) and, especially at Brighton and Copenhagen, by some domestic discontent with the Court and (largely spurious) questions about its legitimacy and authority. The impact of the Interlaken process was incremental rather than profound – while the Court’s capacity to filter and process cases has significantly improved, many proposals emanating from the high-level conferences remain unimplemented or have had negligible impact.

The agenda for the summit in Reykjavik in May – as framed by the HLRG, priorities identified by the Parliamentary Assembly of the Council of Europe, and our conversations with Council of Europe ‘insiders’ – appears significantly more ambitious.

Call for ideas to create an organisation fit for the future 

It was a welcome development that in January, the Council of Europe issued the public call for submissions and ideas. The call emphasises that the organisation has a critical role to play as the region’s guardian of human rights, democracy, and the rule of law and avers that the aim of the summit is to ensure that it is ‘fit for purpose to meet current and future challenges as well as the expectations of future generations’. The questions posed by the call are broadly framed, focusing on a common vision, current and future challenges and the appropriate role for the Council of Europe ‘in the evolving European multilateral architecture and global governance’.

Priorities and pathways

The climate emergency is rightly centre stage in advance of the summit. This will mean building on the Committee of Ministers’ September 2022 recommendation on recognising a clean, healthy and sustainable environment as a human right (reflecting the United Nations General Assembly Resolution in July 2022), and is of mounting interest given the climate cases pending before the Court. What might this mean in more concrete terms? We understand that the creation of a new post of Commissioner for Climate Change and Human Rights is a possibility, but that an agreement to amend the European Convention on Human Rights (as recommended by the Parliamentary Assembly) is unlikely.

Given the ongoing armed conflict in Europe, there is a highly laudable focus on bolstering accountability for the Russian invasion of Ukraine, including proposals for an international register of damage to be hosted by the Council of Europe, and a new compensation claims mechanism, as well as political and technical support for an ad hoc international tribunal to try crimes of aggression (although such a tribunal will not be created under Council of Europe auspices).

As is well known, one issue that has been a continual focus for the Council of Europe over recent decades, albeit without achieving significant improvement, has been the ineffective implementation of judgments of the Court. For example, Turkey’s continuing and unprecedented refusal to free imprisoned human rights defender, Osman Kavala, in spite of a 2019 European Court judgment and 2022 Grand Chamber infringement proceedings judgment ordering his release, is emblematic of the gravity of this problem. Improving implementation was a priority for the HLRG which made a number of specific recommendations, including formalising the practice of calling ministers or other senior government officials of states whose judgments are not implemented on a systematic basis to attend meetings of the Committee of Ministers, and graduated sanctions for persistent non-compliance.

The European Implementation Network has championed calls for a special representative on the implementation of the Court’s judgments, amongst other proposals, which, we understand, has been increasingly gaining traction. In our view, the Reykjavik summit should not be limited to further political commitments about the need for effective implementation, which have repeatedly featured in declarations during the Interlaken process, but must address the persistent calamity of non-intervention with specific reforms which will lead to measurable progress.

A more ‘political’ Council of Europe?

More broadly, there is clearly a drive to reform the Council of Europe as a more ‘political’ organisation, which begs the question as to what exactly that may mean. The Parliamentary Assembly has underlined the need to strengthen the Council’s work on democracy, proposing a new ‘democracy checklist’ for states and establishing a post of Commissioner for Democracy and the Rule of Law. States reportedly also want an organisation that is seen as being more modern, visible and relevant, especially among young people. We understand, for example, that even a change of name is being  considered, to include terms such as ‘rights’ and ‘democracy’ – might this mean a rebranding and relaunching for the organisation’s seventy-fifth anniversary in 2025?

There are also more fundamental questions as to how the organisation should position itself within Europe, given the dominance of the European Union, and the emergence last year of the European Political Community. There will surely be strong support now for a final resolution of the long-standing problems which, to date, have prevented EU accession to the ECHR – and, as signalled by the HLRG, for stronger political dialogue between the EU and the Council of Europe and more coordinated action to put pressure on recalcitrant states that are EU members (as has begun to happen with the inclusion of non-implementation of Strasbourg  judgments in the EU’s annual Rule of Law reports).

In this short blog, we cannot do justice to the full range of issues which have been raised (which we will discuss in greater depth in a special issue focused on the summit of the European Human Rights Law Review in April). For example, the HLRG laid great emphasis on the importance of preventing and combating violence against women and domestic violence. The public call makes specific reference to issues of inequality, as well as digital rights. Also very much on the agenda is how the European Court should respond to inter-state cases, especially those concerning armed conflict and how the Council of Europe could engage more productively on the issue of ‘grey zones’ (see here). As regards Belarus, we understand that there is support for the creation of a new post within the Council of Europe akin to the UN Special Rapporteur on Belarus.

The need for resources

Any such ambitious reform must be matched by resources. The HLRG – echoed by the President of the Court, Judge Siofra O’Leary – laments that the resources provided by states to the Council of Europe are ‘unquestionably insufficient’ to fulfil its current mandate, amounting to less than half a euro per person protected by the system. Contributions have lagged behind inflation for the past decade and the real-terms decrease in the organisation’s ordinary budget make it reliant for around 25% of its staff budget on top-up voluntary contributions by states, which fluctuate dramatically year by year. The HLRG welcomes the move towards a four-year programming cycle, coupled with a biennial budget, and encourages states to consider a ‘fully integrated programming and budgeting process’, in which the mandate and objectives of the organisation drive the budget, not the other way around.

Countdown to the summit 

Submissions to the open call will, it is promised, ‘inform the … outcome documents’, which we understand are likely to include both a political declaration and a forward-looking agenda for the next chairmanship of the Council of Europe, which passes from Iceland to Latvia in May. On 28 February to 1 March, CURE (the Campaign to Uphold Rights in Europe) will hold a Civil Society Summit in The Hague to agree recommendations to be sent to the official summit (see also CURE’s submission to the HLRG).

When heads of state and government meet in Reykjavik in May, the future direction and strategy of the Council of Europe, and indeed the wording of the political declaration, will already have been negotiated by diplomats behind closed doors. Given the limited achievements of state-dominated reform processes in the past, it is all the more important for ideas and proposals (whether big, bold and beautiful, or more focused and technical) to be put forward as soon as possible to the open call. Although there are already some very significant issues on the agenda, as we have discussed above, our understanding is that there is still openness to innovative proposals, which may never have been considered before. As the conflict in Ukraine approaches its grim anniversary, and amid multiplying threats to the Council of Europe’s core values, the stakes could not be higher.

SUGGESTED CITATION  Donald, Alice; Leach, Philip: Adapt or Die?: The Council of Europe seeks new ideas to address ‘seismic change’ , VerfBlog, 2023/1/31, https://verfassungsblog.de/adapt-or-die/, DOI: 10.17176/20230131-174504-0.

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